In a new op-ed for Ukrainska Pravda, Anna Nekrasova, Legal Adviser and Deputy Lead of Team North at GRC, and Kristin Blyckert, International Lawyer, discuss the problems of using covert information originating from Ukrainian military, security, and intelligence bodies in war crimes cases. The importance of such insights becomes particularly evident when direct evidence of linkage is lacking. Yet using this material as evidence always raises procedural and practical challenges, including in Ukraine.
In the op-ed, Anna and Kristin highlight the main practical challenges of using covertly obtained materials:
- with respect to intelligence material, the absence of a clear legal framework governing its use as evidence;
- with respect to other covert materials, the practical difficulties of ensuring a chain of custody in wartime conditions; and
- the broader challenge of source verification, stemming from the nature of covert material.
Unlike operative and counterintelligence information, intelligence is not designed to function as courtroom evidence. The Criminal Procedural Code does not regulate how such intelligence may be transformed into admissible proof.
Another problem concerns maintaining the chain of custody for covert materials obtained during the earliest and most chaotic stages of the full-scale invasion. Obviously, in such conditions documentation of origin, metadata, or uninterrupted chains of custody could not always be preserved in a manner that corresponds to the standards required for criminal proceedings. Moreover, the origin of covertly obtained materials is oftendifficult or impossible to verify.
These issues raise admissibility concerns at trial, particularly where covert information of security or military origin forms the core of a war-crimes prosecution, most acutely in cases targeting senior commanders.
Considering these highly practical issues, which have already been encountered in GRC’s work, Anna and Kristin analyse case law from international tribunals and the European Court of Human Rights, which provides guidance across such challenges. International courts admit such evidence where it is relevant and probative, and where its admission does not prejudice the overall fairness of proceedings.
Given GRC’s long-standing practice of working closely with Ukrainian prosecutorial and law enforcement bodies, Anna and Kristin identify six key areas of focus that could address this gap. Among these measures, in particular, it is recommended that domestic practice is aligned with established international standards.
🔗 Read the full op-ed by Anna Nekrasova and Kristin Blyckert.
🔗Read the full op-ed in Ukrainian here.
MJTs operate as part of the Atrocity Crimes Advisory (ACA) Group for Ukraine – a multilateral initiative established by the United Kingdom, the European Union, and the United States to support and assist Ukrainian prosecutors in investigating and prosecuting international crimes committed during the full-scale war.